Published in Print: October 9, 2013, as N.Y.C. Tech Glitches Prompt Big Payout

NYC Tech Shortcomings Prompt Big Payout for Educators

School psychologist Barbara Mercaldo, standing outside P.S. 36 Margaret Douglas Elementary School in New York City, is one of more than 30,000 district educators awarded backpay after they had to work outside of their contractually mandated workdays because of slow school Internet connections and other technical challenges.

A $41 million-and-counting settlement being paid to educators in New York City public schools could have big implications for school districts across the country struggling to provide adequate technology and Internet bandwidth for their employees.

In April, the New York City department of education began paying back wages to more than 30,000 teachers, school psychologists, social workers, and others after an arbitrator agreed with the United Federation of Teachers that many of its members had been improperly forced to work beyond their contractually mandated workday when implementation of a new student-information system was plagued by slow Internet connections, glitchy software, a lack of computers, and poor training and technical assistance. Initially, the legal decision went largely unnoticed outside of New York City, but experts have recently seized upon its potential significance.

"This is the first time I am aware of a public school system being held accountable, in a legal manner and with real dollars attached, for the quality of its broadband infrastructure, software implementation, and training," said Douglas A. Levin, the executive director of the State Educational Technology Directors Association, or SETDA, based in Glen Burnie, Md. "Schools and districts are now on the hook for following through on their promises with respect to technology."

Increasingly, said Mr. Levin, K-12 educators see digital devices and high-speed Internet connections not as a threat or a frill, but as basic workplace necessities, akin to desks and electricity. Now, he said, that view is buttressed by a legal precedent that could have a ripple effect on everything from collective bargaining agreements to courts' involvement in ensuring equitable school funding.

The problems in New York first arose during the 2009-10 school year, when the 1.1- million-student district began implementing a new software program called SESIS, short for Special Education Student Information System. City education officials said shifting from paper to electronic records was necessary to improve services for the roughly 200,000 students with disabilities and to better meet state and federal reporting requirements. But school-based educators quickly complained that technical problems were forcing them to use the software at home and outside of traditional work hours.

"The school system required things of teachers, but never gave them the tools to do their job," said Randi Weingarten, the president of the 1.5 million-member American Federation of Teachers, which supported the New York City teacher union in pursuing its grievance over the issue.

Software Frustrations

Barbara Mercaldo is one of several New York City educators who testified about the problems with SESIS before the arbitrator. In an interview, Ms. Mercaldo said she has been a school psychologist in the district for 22 years, most of which she spent inside classrooms, making sure that students with disabilities received the tailored instruction to which they are legally entitled.

But since the city department of education implemented the new software, she said, "my job has become that I sit in front of a computer and input information."

Initially, SESIS was rolled out as a way to enter and share each student's Individualized Education Program, or IEP, which district officials said in a statement had previously been stored in "miles of filing cabinets across the city." The software quickly grew into a system for documenting every encounter that each student with disabilities had with any educator in the district.

Johanna Chase, the CEO of special education strategy and operations for the district, said SESIS has "revolutionized the way we do special education in New York City," providing thousands of professionals with "real-time access" to information on students with disabilities.

Similar student-information systems are now used by most school districts, but they often engender frustration among educators: A 2012 survey by the Washington-based Consortium for School Networking, for example, found that fewer than one-fourth of teachers found their district's student-information system useful for helping plan classroom activities.

In New York City, the frustrations felt by educators like Ms. Mercaldo were compounded by additional problems.

The first challenge, said Ms. Mercaldo, was finding an available computer in some schools. When she did get on to SESIS, she found the program to be "rigid" and unreliable, regularly failing to process key information and documents.

And when she called the SESIS help desk, Ms. Mercaldo said, "I had to hold on the phone for up to an hour and a half. It was very, very frustrating."

Michael Mulgrew, the president of the 200,000-member United Federation of Teachers, said in an interview that similar complaints about SESIS poured into his office throughout the 2010-11 and 2011-12 school years.

Many focused on insufficient school bandwidth: Completing an entry for a single student in the software program took roughly 14 clicks, but slow Internet connections meant each click could take 30 seconds or more to register.

The net result, said Mr. Mulgrew, was that "thousands of educators were going onto the system at home, in the middle of the night because they thought that's what they needed to do to serve children."

Officials from Maximus Inc., the Reston, Va.-based contractor that designed and maintains the SESIS software, did not return requests for comment.

The UFT raised their complaints with district officials, but Mr. Mulgrew said the concerns went largely unheeded. In response, the union filed a grievance in the fall of 2011, arguing that teachers' daily work hours—capped in their contract at 6 hours and 20 minutes, with 37.5 additional minutes on Monday through Thursday—had been unilaterally extended without their consent. The case ultimately went to arbitration.

A 'Rigid' Contract

In its statement, the district acknowledged "well-publicized issues with SESIS in past years" and said officials have "worked diligently to ensure that staff are able to do this work during regular hours with minimal disruption."

In an interview, David Brodsky, the director of the district's office of labor relations, took a firmer stance. "The bottom line," he said, "is that we work within a fairly rigid collective bargaining agreement which very much prescribes what educators can do during the day, and to some extent that hampers our ability with respect to these initiatives."

Calculating Backpay

The district is still contesting a portion of the arbitrator's award. Nancy Waymack, the managing director for district policy at the National Council on Teacher Quality, a Washington-based nonprofit that has often been critical of teacher contracts, said New York teachers' defined workday is "definitely on the low end," as teachers in most other large districts are contractually required to work an average of about 7.5 hours each day.

But Ms. Waymack said that the vast majority of teachers in New York City and elsewhere regularly grade papers, plan lessons, and do other work at home and that testimony and documentation submitted during the arbitration process made clear that "things like inadequate bandwidth and poor technical help slowed [New York City] teachers down from doing their work."

"I think this is a situation where workday provisions were used to fix a really frustrating and annoying problem," Ms. Waymack said.

In January of this year, the arbitrator handed down a resounding victory for the UFT. It ordered the district to use logs generated by SESIS itself to calculate every hour that every educator in the city had spent using the system outside of the contractually mandated workday and to reimburse each at their hourly rate.

To date, 30,152 educators have received checks. One school psychologist, who declined to be identified, was awarded $50,000. Babara Mercaldo received $800.

"I was ecstatic," she said, "because it showed that the work teachers had been taking home was not going unrecognized."

Nationally, school district leaders and many observers in the education community have been slow to pick up on the national implications of the New York City case, said Mr. Levin of SETDA, in part because relatively few people fully grasp the broader technology shifts taking place in K-12 education.

On each of those fronts, he argued, the UFT's arbitration victory "raises the specter of liability for not following best practices."

The possibility of being held accountable for not providing adequate bandwidth in schools is likely to be particularly troubling for districts, many of which have struggled to upgrade to high-speed connections.

Liability Questions

The question of districts' liability for providing adequate technology could soon be tested again in New York City. The SESIS system is still in use, and Mr. Mulgrew said his members are still reporting many of the same problems that led to the union's earlier complaint.

One lesson from New York, Mr. Levin said, is that teachers and other school-based educators need to be meaningfully involved in the design and implementation of major technology initiatives.

"These decisions can no longer be left to the geeks in the server room," he said.

Ms. Weingarten of the AFT agreed, pointing to McDowell County—a desperately poor section of West Virginia where the AFT, the state's governor, telecommunications companies, and others have partnered to provide broadband access to schools and communities—as an example of effective labor-management collaboration around technology.

"Teachers are crying out for the appropriate use of technology," Ms. Weingarten said, "but it takes two to tango."

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